1 AFR HIGH COURT OF , BILASPUR WPC No.946 of 2017 Pankaj Sahu S/o Shri Phoolchand Sahu, Aged About 35 Years Occupation Business, R/o Subhash Nagar, Ward No. 25, , P.S. Mahasamund, Civil & Revenue District Mahasamund (Chhattisgarh). ---- Petitioner Versus 1. State Of Chhattisgarh Through Secretary Nagriya Prashashan & Vikas Vibhag, Mantralaya Bhawan, Capital Complex, New , Civil & Revenue District Raipur (Chhattisgarh). 2. Collector Mahasamund, District Mahasamund (Chhattisgarh). 3. Sub Divisional Officer (Revenue), Mahasamund, District Mahasamund (Chhattisgarh). 4. Tahsildar Mahasamund, District Mahasamund (Chhattisgarh). 5. Municipal Council Mahasamund, Through Its Chief Executive Officer, Municipal Council Mahasamund, District Mahasamund (Chhattisgarh). ---- Respondents

For Petitioner : Mr.Sumit Shrivastava, Advocate For Res.No.1 to 4 : Mr.Ashish Surana, Panel Lawyer For Respondent No.5 : Mr.Dheeraj Wankhede, Advocate

Hon’ble Shri Justice Sanjay K. Agrawal Order on Board 25/10/2017

1. V.R. Krishna Iyer, J, in the matter of Municipal Council,

Ratlam Vs. Shri Vardichan and others1 speaking for the

Supreme Court said as under:-

“Why drive common people to public interest action ? Where directive principles have found statutory expression in Do's and Dont's the court will not sit idly by and allow municipal government to become a statutory mockery. The law will relentlessly be enforced and the plea of poor finance will be poor alibi when people in misery cry for justice. The dynamics of the judicial process has a new 'enforcement' dimension not merely through some

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(1980) 4 SCC 162 2 of the provisions of the criminal procedure code (as here), but also through activated tort consciousness. The officers in charge and even the elected representatives will have to face the penalty of the law if what the Constitution and follow up legislation direct them to do are defied or denied wrongfully. The wages of violation is punishment, corporate and personal.”

2. The above-stated statement of law aptly and squarely applies

to the facts of the present case, which are as under:

2.1 The petitioner is Councillor of Municipal Council,

Mahasamund. He has come to this Court complaining that

the Municipal Council, Mahasamund has failed to perform

its statutory duty envisaged under the Chhattisgarh

Municipalities Act, 1961 (hereinafter called as “the Act of

1961”) despite the attention of Municipal Council has been

drawn to the fact that drainage covered has been opened

in National Highway No.353 within the municipal limits on

both sides of the road. In the name of removal of

encroachment, citizens of the area are not able to

approach to concerned shops for their daily needs and

roads of the locality are neither usable nor workable, which

is contrary to the provisions of the Act of 1961 and

violative of their right to life provided in Article 21 of the

Constitution of .

3. Upon being noticed, the State Government and Municipal

Council, Mahasamund have filed separate, but common return

stating inter-alia that it is regular work of the Municipal

Council to clean drainage and also to remove the 3 encroachment from government land, so that traffic of the

city should be smooth and for that purpose initially notices

were issued and circulated and thereafter the Municipal

Council has initiated action for removal of encroachment and

on the direction of the Collector, encroachment beside the

National Highway No.353 and State Highway has been

removed by constituting a team and it is the Government

scheme to clean the city as well as village under Swach

Bharat Abhiyan and action was taken by the respondent

authorities to clean the drainage system and remove the

encroachment of the city. It has further been pleaded that

action has been proposed and removal of encroachment has

been completed and drain(s), if any, are not covered, it will be

covered by respondent No.5/Municipal Council, Mahasamund.

While replying to the relief of completion of restoration work

and to cover up the drain by concrete slab, it has been

pleaded that same will be restored and drain(s) will be

covered very soon and they have already initiated

proceedings for allocation of fund from the State Government.

Municipal Council, Mahasamund has reiterated the stand

taken by the State Government and both returns are

supported by affidavit of Mr.Tamson Ratre, Chief Municipal

Officer, Municipal Council, Mahasamund.

4. Mr.Sumit Shrivastava, learned counsel appearing for the

petitioner, would submit that Municipal Council, Mahasamund

has failed to perform its statutory obligations and 4 responsibility contained in Sections 123 and 124 of the Act of

1961 and in the name of encroachment, drainage covered has

been opened in National Highway No.353 within the municipal

limits on both sides of the road and thereafter neither drains

are being covered nor the restoration work of removal of

garbage has been done till this date by Municipal Council and

despite attention drawn of the said fact to Municipal Council

and also to the Collector by Nagrik Samiti, Mahasamund, yet,

no action has been taken neither by Municipal Council,

Mahasamund nor by Collector, Mahasamund and as such,

necessary direction be issued to Municipal Council,

Mahasamund and the State Government to provide necessary

workable and usable roads and also to cover the drains within

the locality of Municipal limits. The lack of financial resources

cannot be the ground not to perform the statutory obligations

contained in the Act of 1961.

5. Mr.Ashish Surana, learned Panel Lawyer appearing for

respondents No.1 to 4/State and Mr.Dheeraj Wankhede,

learned counsel appearing for respondent No.5, would oppose

the writ petition and submit that necessary work will be done

expeditiously.

6. I have heard learned counsel appearing for the parties,

considered their rival submissions made herein-above and

also gone through the records with utmost circumspection.

7. At this stage, it would be appropriate to notice Section 123(1)

(b) and (j) of the Act of 1961 which provides duties of Council 5 which reads as under:-

“123. Duties of Council.-(1) In addition to the duties imposed upon it by or under this Act or any other enactment for the time being in force, it shall be the duty of a Council to undertake and make reasonable and adequate provision for the following matters within the limits of the Municipality, namely:- (b) cleaning public streets, places and sewers, and all places, not being private property, which are open to the enjoyment of the public whether such places are vested in the Council or not; removing noxious vegetation, and abating all public nuisances; (j) constructing, altering and maintaining public streets, culverts, Municipal boundary marks, markets, hats, slaughter-houses, latrines, privies, urinals, drains, sewers, drainage works, sewerage works, baths, washing places, drinking fountains, tanks, wells, dams and the like;”

8. While considering the provisions contained in Section 123 (1)

(b) & (c) of the Act of 1961 the Supreme Court in the matter

of Municipal Council, Ratlam (supra) has held that lack of

financial resources is not a ground for non-performance of

statutory duty and further held that the Municipal Council is

under obligation to provide drainage system in a working

condition sufficient to meet the needs of the people. It was

observed as under:-

“12. The statutory setting being thus plain, the municipality cannot extricate itself from its responsibility. Its plea is not that the facts are wrong but that the law is not right because the municipal funds being insufficient it cannot carry out the duties under Section 123 of the Act. This 'alibi' made us issue notice to the State which is now represented by counsel, Shri Gambhir, before us. The plea of the municipality that notwithstanding the public nuisance financial inability validly exonerates it from statutory liability has no juridical basis. The criminal procedure code operates against statutory bodies and others regardless of the cash in their coffers, even as human rights under Part III 6 of the Constitution have to be respected by the State regardless of budgetary provision. Likewise, Section 123 of the Act has no saving clause when the municipal council is penniless. Otherwise, a profligate statutory body or pachydermic governmental agency may legally defy duties under the law by urging in self-defence a self-created bankruptcy or perverted expenditure budget. That cannot be.

15. Public nuisance, because of pollutants being discharged by big factories to the detriment of the poorer sections, is a challenge to the social justice component of the rule of law. Likewise, the grievous failure of local authorities to provide the basic amenity of public conveniences drives the miserable slum-dwellers to ease in the streets, on the sly for a time, and openly thereafter, because under Nature's pressure, bashfulness becomes a luxury and dignity a difficult art. A responsible municipal council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability. Decency and dignity are non-negotiable facets of human rights and are a first charge on local self-governing bodies. Similarly, providing drainage systems - not pompous and attractive, but in working condition and sufficient to meet the needs of the people- cannot be evaded if the municipality is to justify its existence. A bare study of the statutory provisions makes this position clear.”

Their Lordships further directed the State Government to grant sufficient financial aid to the municipality by directing as under:-

“24. We are sure that the State Government will make available by way of loans or grants sufficient financial aid to the Ratlam Municipality to enable it to fulfil its obligations under this order. The State will realise that Art. 47 makes it a paramount principle of governance that steps are taken 'for the improvement of public health as amongst its primary duties'. The municipality also will slim its budget on low priority items and elitist projects to use the savings on sanitation and public health. It is not our intention that the ward which has woken up to its rights alone need be afforded these elementary facilities...... ” 7

9. State of H.P. and another Vs. Umed Ram Sharma and

others2 was a case where the residents of hilly area wanted

existence of roads in reasonable conditions, right was

embraced into their right to life in context of the constitutional

provisions. Their Lordships of the Supreme Court interpreted

Art. 21 as embracing not only physical existence of life but

the quality of life. Their Lordships accepted it as a proposition

well settled for residents of hilly area that access to road is

access to life itself. Their Lordships further observed as

under:-

“Accordingly, there should be road for communication in reasonable conditions in view of our Constitutional imperatives and denial of that right would be denial of the life as understood in its richness and fullness by the ambit of the Constitution.”

10. In Vikram Deo Singh Tomar Vs. State of Bihar3,

Their Lordships said:-

“We live in an age which recognizes that every person is entitled to a quality of life consistent with his human personality. Their right to life with human dignity is the fundamental right of every Indian citizen.”

11. The Supreme Court in the matter of Francis Coralie

Mullin Vs. The Administrator, Union Territory of

and others4 observed as under:-

“The right to life enshrined in Art. 21 of the

2 AIR 1986 SC 847 : (1986) 2 SCC 68 3 AIR 1988 SC 1782 4 AIR 1981 SC 746 8 Constitution of India cannot be restricted to mere physical existence. It means something much more than just physical survival. The right to life includes the right to live with human divinity.”

12. The Division Bench of the Madhya Pradesh High Court in

the matter of Citizen add Inhabitants of Municipal Ward

No.17 Municipal Corporation Vs. The Municipal

Corporation, Gwalior and Ors5 has held that

non-performance of statutory obligation by Municipal

Corporation violates citizens and inhabitants right enshrined

in Article 21 of the Constitution of India, as they are entitled to

live as human being within the corporation limit.

13. Thus, it is obligation of Municipal authorities and other

agencies of the State to provide complete means of

communication (road) in good and proper condition and

citizens are entitled to excellent civic amenities including

roads in workable condition. In the context of the

constitutional provisions, the existence of roads in reasonable

condition is embraced in the citizens' right to life. Every

person is entitled to right to life as enjoined under Article 21

of the Constitution of India, which includes right to live with

human dignity.

14. In the present case, Municipal Council, Mahasamund has

failed to perform its statutory obligation by providing usable

and workable roads and also to fill up uncovered drains after

the alleged removal of encroachment. Alleged non-grant of

requisite fund cannot be ground for non-performance of

5 1992(1) MPJR 93 9 Municipal function.

15. In view of above, it is directed that the State

Government will constitute a committee consisting of officers

not below the rank of Additional Secretary/Special Secretary,

State of Chhattisgarh, Director, Urban Administration,

Collector, Mahasamund and Chief Municipal Officer, Municipal

Council Mahasamund to visit the Municipal limits of Municipal

Council, Mahasamund and to take effective and proper steps

to provide basic civic amenities including usable roads

covered drainage etc. to the residents of Municipal Council,

Mahasamund. Same will be done within 10 days from the date

of receipt of a copy of this order and consequent work will be

carried out within further two weeks as per direction by the

Committee. The State Government will provide necessary

funds for performance of said work.

16. With the aforesaid observation, the writ petition finally

stands disposed of. No cost(s).

17. A copy of this order be sent to the Principal Secretary,

Department of Urban Administration for compliance and to do

the needful.

Sd/-

(Sanjay K. Agrawal)

Judge

B/- 10

HIGH COURT OF CHHATTISGARH AT BILASPUR

WPC No.946 of 2017

Petitioner Pankaj Sahu

Versus

Respondents State of Chhattisgarh and others

HEAD NOTE

(English)

Lack of financial resources cannot be ground to Municipal

Council for not performing the statutory obligation as

provided in Municipalities Act, 1961

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